Illegal Aliens Can Form Unions: High Court

A court judgment has been passed that gives illegal immigrants permission to organize labor unions, so long as the immigrants are practically hired and are working. On February 1, Seoul High Court gave a decision upon the lawsuit which was filed by the Migrants’ Trade Unions of Seoul, Gyeonggi and Incheon Region (MTU), against the Seoul Regional Labor Office, that called for the cancellation of the office’s refusal to authorize the establishment of a labor union. Senior judge Kim Su-hyeong ruled in favor of the workers, reversing the initial decision.

As the first labor union for migrant workers, MTU consists of 91 members, some of which are known to be illegal residents. As the case is now headed to the Supreme Court, it is drawing widespread public attention.

Reciting the ruling, the judge explained, “Although the Immigration Control Act outlaws the employment of foreigners staying illegally in the country, it cannot nullify the job contracts of migrant workers that are already established. In addition, this provision cannot be taken as one that prohibits these workers from forming associations.”

The court added, “Even though the regional labor office has no authority to judge whether a trade union member is eligible to work in the state, it has demanded that the union submit a list of workers’ names, which has no lawful grounding. It is against the law to reject the union’s establishment application on the basis that the union has refused to provide the list.”

In May 2005, when MTU first announced its foundation, the Seoul Regional Labor Office dismissed it, insisting that it should include information regarding the “name of each workplace,” “name of the representative,” and “names of the members.”

As the trade union refused to do this, the labor office rejected their application, arguing “members of an organization composed of illegal migrant workers cannot be regarded as laborers as defined by the Trade Union and Labor Relations Adjustment Act.” The judges of the first trial agreed on this stance.

However, the new judgment of the appellate court is likely to trigger intense controversy as it opposed the first judgment by recognizing the status of laborers in a broad sense, putting it before to the fact that they could be illegal immigrants.

The Ministry of Labor immediately announced that it would bring the final appeal to the Supreme Court, asserting, “The state cannot guarantee the labor rights of lawbreakers.”

The high court interpreted that the purpose of the Immigration Control Act is to forbid disqualified job seekers from gaining employed. However, it has judged that the law is not intended to ban those laborers who are already working ‘in practice’ from organizing associations.

Nevertheless, the Ministry of Labor holds the position that as the employment of illegal immigrants itself is already unlawful, they cannot set up a legal workers’ organization. The ministry stated, “It is contradictory that one of main goals of their association is to ‘stand against crackdowns on illegal migrant workers’.”

While the labor world is welcoming the court’s decision, it still predicts difficulties for these laborers in fully exercising the union’s three primary rights: the right of organization, the right to collective bargaining, and the right to strike.

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